Citation Nr: 9933587
Decision Date: 11/30/99 Archive Date: 12/06/99
DOCKET NO. 94-47 288 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to service connection for post traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Ferrandino, Associate Counsel
INTRODUCTION
The veteran had active service from August 1967 to April
1969.
The veteran was previously denied service connection for PTSD
by decision of the Board of Veteran's Appeal's (Board) in
June 1990. This appeal arises from a November 1993 rating
decision from the Pittsburgh, Pennsylvania Regional Office
(RO) that determined that no change was warranted in the
prior denial of service connection for PTSD. A Notice of
Disagreement was filed in June 1994 and a Statement of the
Case was issued in September 1994. A substantive appeal was
filed in October 1994.
In November 1994 a hearing at the RO before a local hearing
officer was held.
In a decision in February 1997, the Board determined that new
and material evidence had been presented to reopen the
veteran's claim for service connection for PTSD and remanded
the case to the RO for further development. The case was
thereafter returned to the Board.
FINDING OF FACT
The claim for service connection for PTSD is plausible.
CONCLUSION OF LAW
The veteran has stated a well-grounded claim for service
connection for PTSD. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
A person who submits a claim for benefits under a law
administered by the Secretary shall have the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded. If
a well-grounded claim is submitted, the Secretary shall
assist such a claimant in developing the facts pertaining to
the claim. 38 U.S.C.A. § 5107(a). Accordingly, the initial
question for our determination is whether the veteran has
presented evidence of a well-grounded claim. If not, the
appeal must fail, because the Board has no jurisdiction to
adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17
(1993).
A well-grounded claim is a plausible claim, one which is
meritorious on its own or capable of substantiation. Such a
claim need not be conclusive but only possible to satisfy the
initial burden of proof of 38 U.S.C.A. § 5107 (a). Murphy v.
Derwinski, 1 Vet. App. 78, 81. However, to be well grounded,
a claim need not be conclusive but must be accompanied by
evidence that suggests more than a purely speculative basis
for granting entitlement to the requested benefits. Dixon v.
Derwinski, 3 Vet. App. 261, 262-263 (1992). Evidentiary
assertions accompanying a claim for VA benefits must be
accepted as true for purposes of determining whether the
claim is well grounded, unless the evidentiary assertion is
inherently incredible or the fact asserted is beyond the
competence of the person making the assertion. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). When the question
involved does not lie within the range of common experience
or common knowledge, but requires special experience or
special knowledge, then the opinions of witnesses skilled in
that particular science to which the question relates are
required. Questions of medical diagnosis or causation
require such expertise. A claimant would not meet this
burden merely by presenting lay testimony, because lay
persons are not competent to offer medical opinions. Id. at
495.
A claim for service connection for PTSD requires three (3)
elements to be well grounded. There must be competent
evidence of a current disability (a medical diagnosis);
medical or lay evidence of an in-service stressor; and
medical evidence of a nexus (causal relationship) between
service and the current PTSD disability. Cohen v. Brown, 10
Vet. App. 128 (1997).
In the instant case, there is evidence that the veteran has
been diagnosed as having PTSD. A VA hospital report from
August 1986 notes that the veteran was a combat engineer in
Vietnam who saw many firefights; the diagnoses included PTSD.
A March 1989 VA hospital report notes that the veteran
completed a military records check, life history
questionnaire, social assessment, MMPI, the Mississippi Scale
for Combat Related PTSD, and assessment interviews. The
veteran was assigned to Combat Engineers in Vietnam. He was
involved in several combat actions. He reported sleep
disturbance, nightmares, hyperalertness, memory loss, and
psychic numbing. The diagnoses included PTSD, chronic.
Further, a VA hospital report pertaining to treatment from
April 1989 to June 1989 indicates a diagnosis of PTSD and
describes combat trauma and grieving for friends killed in
Vietnam. An October 1992 VA hospital report notes a
diagnosis of PTSD and notes that the veteran served in
Vietnam as a Combat Engineer. A May 1997 VA examination
indicates a diagnosis of PTSD and notes that the veteran
reported rocket fire in Vietnam and witnessing people getting
shot; he had flashbacks and nightmares.
Finally, a Social Security Administration disability
determination evaluation report from March 1995, notes that
the veteran was diagnosed with PTSD based on symptom pattern
characteristic of that disorder and his experiences in
Vietnam witnessing and experiencing events that involved and
threatened death and serious injury.
Furthermore, with regard to evidence of inservice stressors,
the veteran describes witnessing the death of several
soldiers, dead bodies, being under fire while clearing a
jungle in April 1968 to May 1968, a bridge blowing up in June
1968, and clearing a jungle in July 1968 where a soldier
riding on a bulldozer behind the veteran's bulldozer was
killed.
The veteran's service records indicate that he served in
Vietnam and was assigned to Co D 62d Engr Bn from March 1968
to January 1969 and with 984th Engr Co (LC) from January 1969
to April 1969. His military occupational specialty was
carpenter. Awards and decorations received include Vietnam
Service Medal, National Defense Service Medal, and Vietnam
Campaign Medal.
A report from the Environmental Support Group (ESG) from
December 1988 notes in part that in the area that the veteran
was stationed, there were enemy attacks mostly by fire and
there were several ground probes. A bridge was blown up in
June 1968. Additionally, in June 1968, Ben Luc was fired
upon, but there were no casualties. There was confirmation
that a soldier with the 984th Engr Co (LC) 62 Engr Bn, died
from wounds in February 1969.
An October 1997 report from the U.S. Armed Services Center
for Research of Unit Records (USASCRUR) notes in part that a
soldier mentioned by the veteran was killed in action in May
1968.
Thus, as the veteran has asserted stressors that occurred in
service and there are diagnoses of PTSD attributable to
events in service, the Board finds that the veteran has
presented a claim for service connection for PTSD that is
well grounded.
ORDER
To the limited extent that the appellant's claim of
entitlement to service connection for PTSD is well grounded,
the appeal is granted.
REMAND
As the veteran's claim for service connection for PTSD has
been found to be well grounded, the VA has a duty to assist
the appellant in the development of facts pertaining to his
claim. 38 U.S.C.A. § 5107(a) (West 1991). The duty to
assist is neither optional nor discretionary. Littke v.
Derwinski, 1 Vet. App. 90 (1990).
The undersigned notes that the VA examination conducted in
December 1998 is inadequate. The examination did not address
the veteran's previous diagnoses of PTSD or the stressors
described by the veteran and listed in the ESG and USASCRUR
as mentioned above in a determination of a diagnosis of PTSD
and a nexus between any current PTSD and the veteran's
service. Therefore, the veteran should be afforded a
thorough and contemporaneous VA psychiatric examination that
takes into account the records of prior treatment for PTSD.
Accordingly, the case is REMANDED to the RO for the
following:
1. The RO should contact the veteran and
obtain the names and addresses of all
health care providers who treated the
veteran for PTSD since service.
Thereafter, the RO should obtain legible
copies of all records that have not
already been obtained, including those
from the Pittsburgh, Pennsylvania VAMC.
2. Following completion of the above
action, the veteran should be afforded a
current VA psychiatric examination by an
physician, other than the one who
examined him in December 1998. In so
doing, the examiner should be furnished a
list of the abovementioned stressors as
noted by the ESG and the USASCRUR. It is
imperative that the examiner review the
claims folder prior to the examination,
and that all indicated psychological
testing is undertaken, including, if
indicated, an MMPI and Mississippi Combat
Inventory Scale. If it is determined
that psychological testing is not
indicated, the examiner should note a
rationale for the determination. The
psychiatrist should then render an
opinion as to whether the appellant
currently suffers from PTSD. It should
also be noted whether a current diagnosis
of PTSD is linked to a specific
corroborated stressor event experienced
while in service pursuant to the
diagnostic criteria set forth in
Diagnostic And Statistical Manual of
Mental Disorders (DSM-IV). If a
diagnosis of PTSD is rendered, the
examiner should specify the stressor(s)
upon which the diagnosis is based,
discuss the etiology of the appellant's
PTSD, and provide all factors upon which
the diagnosis was made.
3. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all requested
development has been completed in full.
If any development is incomplete,
appropriate corrective action should be
implemented. When the requested
development is complete, the RO should
readjudicate this claim. If the benefit
sought remains denied, the veteran and
his representative should be furnished an
appropriate supplemental statement of the
case. If the veteran fails to appear for
a scheduled examination, the RO should
include verification in the claims file
as to the date the examination was
scheduled and the address to which
notification was sent. The veteran and
his representative should then be
afforded an opportunity to respond.
Thereafter, the case should be returned to the Board, if in
order. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded to the regional office. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Iris S. Sherman
Member, Board of Veterans' Appeals